The al Qaeda suspects who were subjected to so-called harsh interrogation techniques, and the lawyers charged with defending them at the Guantanamo Bay military tribunals, are not allowed to talk about the treatment they consider torture. Defense attorneys say that and other Kafkaesque legal restrictions on what they can discuss with their clients and raise in the courtroom undermine their ability to mount a proper defense on charges that could lead to the death penalty. Those restrictions will be the focus of a pretrial hearing that convenes this week. Prosecutors say every utterance of the alleged al Qaeda murderers, and what their lawyers in turn pass on to the court, must be strictly monitored precisely because of the defendants’ intimate personal knowledge of highly classified CIA interrogation methods they endured in the agency’s clandestine overseas prisons. Defense attorneys called that view extreme. “Everything is presumptively top secret. So if my client had a tuna fish sandwich for lunch, I couldn’t tell you that,” Cheryl Bormann, who represents defendant Walid bin Attash, said after the May arraignment of the men charged with plotting the 9/11 attacks on the World Trade Center. At one point in the arraignment, another of bin Attash’s attorneys, Air Force Captain Michael Schwartz, was explaining why his client refused to cooperate. Just when things got interesting, a security officer cut the audio feed to the media and others observing the proceedings from behind a soundproof glass wall with a 40-second audio delay. “The reason for that is the torture that my client was subjected to by the men and women wearing the big-boy pants down at the CIA, it makes it impossible …,” Schwartz said during the blocked portion of the arraignment, according to a partial transcript later declassified. Prosecutors have said in court filings that any revelations about the defendants’ interrogations could cause “exceptionally grave damage.”
Civil libertarians argue that if those interrogation methods really are top secret, then the CIA had no business revealing them to al Qaeda suspects. Defense attorneys will challenge the secrecy rules at the pretrial hearing that begins on Wednesday at the Guantanamo Bay U.S. Naval Base. Prosecutors have about 75,000 pages of evidence to turn over to defense attorneys in the 9/11 case, but they won’t do it until the judge, Army Colonel James Pohl, issues protective orders aimed at safeguarding the material.
Hundreds of men suspected of supporting al Qaeda or the Taliban were rounded up in Afghanistan, Pakistan and elsewhere and shipped to Guantanamo in response to the September 11 attacks. (Of the 779 men who have been held at Guantanamo since the prison operation began in 2002, 168 remain.) The CIA took custody of the “high-value” captives believed to have top-level information that could help the U.S. and its allies prevent further attacks. It held them incommunicado for three or four years and transferred them among secret overseas prisons, questioning them with interrogation methods that defense attorneys say amounted to torture and which the Obama administration has since banned. Some details of the program, including waterboarding, mock executions and sleep deprivation, have already been disclosed by Bush and the CIA itself. Jose Rodriguez, a former CIA official, recently defended them in news interviews to promote his book, “Hard Measures: How Aggressive CIA Action After 9/11 Saved American Lives.”
Yet in both the 9/11 case and that of Abd al Rahim al Nashiri, who is accused of sending suicide bombers to ram a boat full of explosives into the side of the USS Cole off Yemen in 2000, the government presumes that every word spoken by the defendants, in the past and in the future, is classified at the highest level — “Top Secret,” with a “Sensitive Compartmented Information,” which is routinely shortened to TS/SCI. The defendants’ words are also “born classified,” a status their lawyers said has previously been used only to safeguard details about nuclear weapons. So are all documents and legal motions related to their cases, which cannot be made public unless they’re cleared by a Department of Defense Security Classification Review team. How that team works is a secret. “I’ve never seen them. I’ve never communicated (with them). No one has ever been able to tell me that,” said James Connell, a lawyer for 9/11 defendant Ali Abdul Aziz Ali. The Pentagon would say only that the review team includes both civilians and uniformed military personnel and that it can take up to 15 business days to make its decisions.
Proscribed topics include details of the defendants’ capture, where they were held and under what conditions, the names and descriptions of anyone who transferred, detained or interrogated them and the methods used to get information from them, according to the court documents.
Defense lawyers say the classification system used at Guantanamo violates President Barack Obama’s 2009 order that prohibits using secrecy labels to conceal lawbreaking or prevent political embarrassment. They say it also “eviscerates” the legal defense protections Congress set down in the law that authorizes the Guantanamo tribunals. The government’s secrecy rules mean that every lawyer, paralegal and expert on the prosecution and defense teams must undergo an extensive background check and obtain a TS/SCI clearance. Once they get clearance, they are briefed on what has to stay secret. The document that forms the basis of the presumptive classification is itself secret. “It is ridiculous,” said Army Captain Jason Wright, one of the lawyers for accused 9/11 mastermind Khalid Sheikh Mohammed. “The briefing is classified, so I can’t discuss what I can and cannot discuss.”
Mohammed’s lawyers have asked the UN special rapporteur for torture, Juan E. Mendez, to investigate claims that their client was tortured. But they could only share with Mendez the information that has been publicly declassified. “We are prohibited from sharing any details of his mistreatment, even to the special rapporteur,” Wright said.
The American Civil Liberties Union has filed a challenge arguing that the government has no legal authority to classify information that it not only disclosed to the defendants but forced them to learn. “The question here is: Can the government subject people to torture and abuse and then prevent them from talking about it?” said Hina Shamsi, director of the ACLU’s National Security Project. The ACLU said the claim of broad authority to gag defendants infringes on the American public’s right to open trials and goes far beyond what the courts have allowed, namely that censorship must be narrowly tailored and aimed at protecting a compelling government interest.
Excerpt, Jane Sutton and Josh Meyer, Insight: At Guantanamo tribunals, don’t mention the “T” word, Reuters, Aug. 20, 2012